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Subject: Fence Violation
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05/19/2020 2:52 PM  
Hi Everyone, I am new this forum. Would like to get your expert advise on a Fence violation. I am attaching the plat and actual fence pics please advise. Our HOA is not responding to the issue and the Home owner who violated is President of our HOA.

Fence has been installed close to sidewalk and as per Plat there is 5' easement between property line and sidewalk.

Attachment: 1519521049371.doc



05/19/2020 3:00 PM  
Do your governing documents say you can't have a fence within the easement? An easement generally means it has to be open for a specific use.

We have a utility easement along all property lines but allow fences because they would not prevent use of the easement for utilities and it could be easily removed if ever necessary.


05/19/2020 8:14 PM  
This is not an expert opinion, but my experience . . .

Unless your documents specifically prohibit installation of fencing or some sort of catch-all, "no construction, installation, planting, etc. w/in easement" statements, then the existence of this fencing within the easement is likely acceptable.

If a drainage easement, typically nothing can be constructed or installed w/in the easement that would impede the flow of water.

If a utility easement, anything potentially causing harm to the underground utilities (like a tree that will eventually grow large) is prohibited, but things like shrubs or fencing would be permissible since they will not lead to harm of the utility and can be removed if access to and w/in the easement is ever needed.

Anything constructed/installed w/in an easement is subject to removal by the entity that has rights to that easemen and may or may not be put back in place afterward.

From the plat, it appears that the owner's property goes right up to the edge of the sidewalk. Unless specifically prohibited by your docs, this owner should be able to fence right up to the sidewalk.
(South Carolina)


05/20/2020 9:48 AM  

I am assuming the 5ft easement runs along the street and is a utility easement. This is very common in newer neighborhoods with underground utilities. It is quite common to build on or over such easements. If any utility work needs to be done in the easement, the company doing the work will remove the fence. Some will actually replace the fence, other would not.

I say a non-issue.


05/20/2020 9:22 PM  
I am in Georgia as well. With our CCR's there is no prohibition on doing that. Also once things are approved is can be challenging to reverse that decision. Ethically I would not support reversing an approved decision unless there is a good reason for it. We also have a grandfathered clause with ours that automatically approves if someone makes an improvement and no action is taken for 6 months. Did this get approved while the president was serving in that role and is this being un-equally applied to other homeowners? Alternatively was this never approved and do you not have a grandfather clause. Also, has this been selectively enforced for others while this president has been serving. Outside of those circumstances this is probably a non-issue.
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